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Now, North Carolina's increasingly embarrassing governor's race hinges on this: There will be a recount in Durham after all. With Democratic challenger Roy Cooper currently ahead by more than ten thousand votes, incumbent Pat McCrory is outside the deficit permitting a statewide recount. County-level challenges have become his only hope. Two weeks ago, the Durham County Board of Elections dismissed a protest of the county's voting process. But Wednesday in Raleigh, North Carolina GOP General Counsel Tom Stark—masquerading as a concerned citizen protesting "in an individual capacity, actually"—appealed the case to the State Board of Elections, which voted along party lines 3-2 to mandate the recount. The Board, it seems essential to mention amid such rabid party-politicking, was appointed by the presumptively ousted McCrory.
There was no new evidence adduced at the state board hearing that would suggest the need for a recount, especially within the parameters of the protest itself. The protest, like its previous iteration, hinged on the function of memory cards in voting machines in six Durham precincts. But a motion at the beginning of the hearing from Democratic Board Member Joshua Malcolm to hear the case only on the merits of the protest—and not to admit the litany of other wide-ranging complaints from Stark—was (perhaps understandably) pooh-poohed so as to "get it over with," in Republican Board Secretary Rhonda Amoroso's phrase.
The hearing proceeded much like its forebear, with Stark trying to show that the cards might have malfunctioned into inaccurate tabulation. From this fulcrum, he pivoted to accompanying doubts: The machines were under lock and key so far as we know; the votes came in a batch late into the night on Election Day, and isn't that weird? William Brian, Jr., Chairman of the Durham Board (apparently when he's not Chairman of Santa Claus's sleigh), took the stand with his fellow Board members and described exactly why the votes came in when they did: Because the memory cards were having difficulty reconciling with the aggregating software, the Board made the call to manually tabulate from the tapes the machines printed out, as is proper procedure.
Yet somehow the late hour of the vote submission became the straw that broke the camels' brains. Judge James Baker, a class-A dingdong, mustachioed and bumbling and tossing off assumptions about computer readouts on which had no grasp, told a story from election night to justify a recount. He saw, he reminisced, that at 11:30, with 99% of precincts reporting, McCrory was leading Cooper by 50,000 votes. He texted his daughter that it seemed like McCrory would be re-elected. His daughter texted that he ought to check again, and when he looked back he saw that suddenly Cooper was up by 5,000!
Zoinks! No matter that he could easily have known that the Durham precincts (which lean overwhelmingly Democratic) had not yet reported—other Board members knew, as Citizen Stark knew. That information was available, as Mr. Malcolm—shiningly bald a la MMA announcers—heatedly pointed out in response. But Baker stuck to his guns; no, because he himself was ignorant, because he was surprised, that must mean that things were irregular, enough so that the public cannot trust Durham's results. He compared it to the '40s and '50s in his home county of Madison, where "they waited to see how many votes you needed and gave you that." But of course, Baker added, "I'm not saying that's what happened." Just a funny anecdote, the audience was left to suppose.
Mr. Malcolm, now at wit's end, begged to differ, giving an impassioned speech about how "the constitution speaks to me through the statutes." Grandstanding aside, he had a point: by the letter of the law, there was no cause here for a recount. Dr. Maja Kricker, a Democratic Board member who had arrived a mystifying twenty minutes late, agreed. Board Chairman A. Grant Whitney, a Republican, declared his support for a recount; and Secretary Amoroso, having earlier used the breathless attention of the room to wax philosophic on Moore's law and ask who present still had a flip phone, agreed that there was too much of a cloud hanging over the proceedings not to perform a recount. Case closed.
Baker's own surprise—the initial impetus for the motion to uphold the protest—was hardly germane to the protest at hand; likewise Amoroso's scowling theories on technology's advance, insightful as they may have been. But one reporter couldn't help but notice that the lack of understanding of computer functioning among the board contributed to a more general stupefaction with the mysteries of Election Night in Durham; would there have been the same "cloud," or "taint," on these votes if the panel had been made up of computer scientists? That personal uncertainty in the face of a world of, well, rapidly advancing technology propped open the door through which Stark's aspersions then poured. The statute on which the final decision hinged requires that there be "substantial evidence to believe that a violation of the election law or other irregularity or misconduct did occur and that it was sufficiently serious to cast doubt on the apparent results of the election." There was no such substantial evidence. There was suspicion, fed by a lack of understanding; from a more paranoid perspective, irregularities loom larger and more sinister.
But vague suspicion was beside the legal point. The perceived irregularities—for irregularity, like beauty, is here in the eye of the beholder—were taken as positive evidence that something was amiss, which they (i.e. the irregularities) most certainly were not. The General Counsel for the Board, in fact, chimed in just before the final vote to tell Judge Baker that because Baker was not acting on evidence, it would be sounder legally to dismiss the protest but still call for a recount, based on the Board's broad leeway to do so when they see fit to ensure fair elections.
Baker declined. Thus did the "quasi-judicial" case uphold the protest and disintegrate the state standard of what counts as substantial evidence affecting electoral results. The hitches in Durham's Election Day are now the latest in a line of attacks on North Carolinians' ability to trust their fellow citizens, and these attacks focus again and again on voters of color, who not incidentally tend to vote overwhelmingly Democrat. (Earlier this year, federal courts struck down an excessively harsh North Carolina voter law targeting its Black citizens and mandated that the state redraw gerrymandered districts that focused on neutering the Black vote.)
Dogged wishful thinking manifested in Raleigh as quasi-judicial precedent, and that precedent as part of a much larger "taint" on North Carolina elections: Our guy lost (even while so many of his party-mates won), there must be something fishy, and while we're at it let's try to restrict voting to those who will elect our guy.(1) Stark had obvious partisan motivation for his protest, but this concerned citizen worries that the Board acted from party interest as well. "We're perfectly confident in the result from our hearing and I think they [viz. the State Board] were, too," Durham BOE Chairman Brian (a Republican) said afterwards. "They decided on a recount for reasons I don't understand." Malcolm was more blunt: "I believe this Board does a pretty good job of being nonpartisan. Today I don't believe that was the case."
North Carolina's GOP is not alone in this "but I wanna…" post hoc style of politics—the temptation to use every tool at hand is surely great. Green Party presidential candidate Jill Stein's requests for a recount—with the Clinton campaign's support, despite its having found no "actionable evidence of hacking or outside attempts to alter the voting technology"—in Wisconsin, Michigan, and Pennsylvania rest on roughly the same logic. Pointing to potential security issues and gesturing towards Russia, Stein offers no real evidence of vote tampering besides divergence from pre-polling.(2) (Stein's protest is different, and thus less cynical, in one crucial respect: She is not part of an organization with a proven track record of targeting Black voters using similar claims.) We can't be sure that we know exactly what happened, the argument goes; some shady force may well have fixed the vote; we deserve a recount. But that narrative is guilt until innocence is proven, a standard that democracy cannot withstand, because to live openly alongside our neighbors and grant them say-so over our own lives we must share some modicum of good faith. Of trust.(3)
McCrory and the McCroryettes are not working in good faith, despite their empty-eyed smiles and bland platitudes to the contrary. They are actively attempting to undermine public faith in electoral results. Inevitably, there will be a few votes—"one or two in ten thousand," by Chairman Brian's estimate—that are counted differently in the Durham recount: People fill out their ballots imperfectly, and there are smudges and ambiguous marks that read differently on different vote-tabulating machines. We should expect this, Brian advised. Contra Secretary Amoroso's deeply patronizing mid-hearing reference to the dictionary definition of "irregular," the public ought to know beforehand that these recount discrepancies are in fact quite normal.
Any discrepancies will not be spun that way, though, by the forces of gubernatorial inertia. In the state Board hearing, an SBI investigation of a wholly separate incident (regarding mishandled provisional ballots in the Durham County Commissioners race this spring) was repeatedly cited as an ad boardinem reason for suspicion. Meanwhile, the many protests filed by the protestor's colleagues became evidence, in Stark's telling, that a larger cloud hung over this election; the protests justify the protests. The imagination need not hustle hard to envision how any discrepancies in this much-sought Durham recount will be used to naysay the citizens of North Carolina's ability to fairly elect a governor.
And then, of course, McCrory can petition the General Assembly—with Republican supermajorities in both its houses—to decide the governorship. This is the same General Assembly, mind you, with members who won't rule out expanding the state Supreme Court in an emergency session to install pet justices and preclude the Democratic majority elected by the state's citizens. It is left to the reader to imagine whether the GA has much interest in the people's will being done in the governor's race. McCrory is desperate, and would burn his fiefdom down to maintain his grip. Unfortunately, for North Carolinians, that would not be irregular at all.
- A subplot, also regarding whose voice counts in the North Carolinian political process: Tom Stark and Chairman Whitney reminded the audience repeatedly that Kevin Hamilton, Cooper's lawyer, was from Seattle. Stark was heavy-handed: "I don't understand why the Cooper campaign is sending high-powered lawyers from other parts of the county…" Whitney, more subtle, asked if Hamilton had been able to return to Seattle between the Durham hearing and this one. The subtexts about who belongs here are, to Scalawag, clear.
- From Jill Stein's website: "These recounts are part of an election integrity movement to attempt to shine a light on just how untrustworthy the U.S. election system is."
- None of the preceding is to argue that Stein's camp's concerns about vote-security, and Stark's about outmoded technology, should not be addressed by voting boards. Such steps—when taken outside of active the vote-tallying stage—would presumably help to build trust in election process.